Ramendra Mohan Datta, J. - (1.) The main point for decision herein 18 whether the plaint discloses a cause of action.
(2.) The plaintiff has an overdraft account with the Central Bank of India Ltd. in its New Market Branch. By a Deed called the Deed of Hypothecation the plaintiff in order to secure the said overdraft account, pledged and/or hypothecated in favour of the Bank various iron and steel materials viz, joists, M.S. Rounds, Strips, Angles etc. The plaintiff also executed the usual promissory notes, and other necessary documents as desired by the Bank In its favour. The limit of overdraft was to the extent of 35% of the value of the security. It was subsequently raised to 40%.
(3.) The plaintiff's case as made out in the plaint, shortly, inter alia, is that in the said overdraft account there were various dealings and transactions between November, 1959 and 29th June, 1962, monthly statements of the stock of the goods were submitted by the Bank from time to time ; those were signed by the plaintiff and countersigned by the Godown Keeper of the Bank the plaintiff's last transaction with the Bank would appear from the statement dated 29th June 1962 on the basis whereof the plaintiff made out his claim in this suit. Inasmuch as there were no further transactions after that date, by its letter dated 14th January, 1963 the plaintiff asked the bank to sell his goods lying in the godown at Shalimar. The next averment made in the plaint is that the value of the goods on the basis of the said statement dated 29th June, 1962 was Rs. 1,14,712.60 calculated at the agreed rate of Rs. 500/- per M. ton. The plaintiff gave credit to the defendant bank in respect of its entire dues as shown in the over draft account to the extent of Rs. 81,957.68 paise and after adjusting the same against the aforesaid value of the said security the account showed a credit balance in his favour to the extent of Rs. 32,7.54.92 paise. Over and above the said amount, several other sums had also been claimed by way of sales tax, godown rent and interest and on that basis the total amount claimed by the plaintiff had come up to Rs. 41,274.16P. Thereafter the plaintiff pleaded a notice dated 3rd August, 1964 from his Solicitor calling upon the defendant bank to pay the said sum of Rs. 41,274.16 paise but the defendant failed and neglected to pay the said sum or any part thereof.;